A Growing Chorus of Federal Courts Finds User IDs, by themselves, Do Not Count as Personally Identifiable Information under the VPPA

Recently, a federal district judge joined a number of his colleagues around the country who have told plaintiffs looking to bring a claim under the Video Privacy Protection Act (“VPPA”) that if the data plaintiffs allege was improperly shared cannot, “without more,” personally identify particular persons, then the claim fails.

On January 23, Georgia Federal District Judge Mark H. Cohen dismissed with prejudice a putative class action against Dow Jones & Company, Inc. (“Dow Jones”), where the plaintiff alleged the media company violated the VPPA by sharing the serial number of her Roku streaming media player and video viewing history with mDialog, a third party analytics and advertising company. In dismissing Locklear v. Dow Jones & Co., Judge Cohen echoed other courts that have recently addressed what qualifies as personally identifiable information (“PII”) under the VPPA, finding that “the Roku serial number, without more, does not constitute PII under the statute.”

The plaintiff’s case centered around her use of her Roku media player to download and access content from Dow Jones’ free and on-demand Wall Street ... Continue Reading

The clash between privacy advocates and those companies who make millions of dollars collecting and selling data about pharmaceutical prescription patterns was perhaps inevitable. When the State of New Hampshire passed the Prescription Confidentiality Act last year, leading health information brokers were quick to challenge the law which prohibited prescription information records which contain identifiable data about a patient or prescriber from being transferred, licensed, sold, or used for most commercial purposes. The Act specifically precluded the use of prescriber-identifiable data for “physician detailing” used by pharmaceutical companies to track the prescribing-habits of physicians in order to target individual sales pitches to such physicians.... Continue Reading

Privacy International has issued its annual Privacy and Human Rights Study analyzing privacy protections around the world. The study ranks the United States near the bottom for privacy protections, calling it an “extensive surveillance society.”

In failing to provide privacy rights, the U.S. is in very interesting company, as one news account noted:

Privacy International ranked 36 nations around the globe, including all European Union nations and other major democracies, and determined that in categories such as enforcement of privacy laws, the U.S. is on par with countries like China, Russia and Malaysia.

By holding that the NSA’s domestic eavesdropping program violates the First and Fourth Amendments of the Constitution, Judge Taylor upended Senator Specter’s Bush Administration-approved FISA fix bill. See pages 28-32. Senator Specter’s bill, SB 2453, would amend FISA to permit the NSA to continue the domestic surveillance that Judge Taylor enjoined on August 17. (She stayed the injunction until September 7, when she hold a hearing to consider whether to continue the stay during the appeal that the Department of Justice filed several hours after her initial ruling.) The fallback legislative fix that Senator Specter cooked up with the President’s lawyers would not, even if Congress were to enact it, overcome the constitutional flaws that Judge Taylor found in the NSA eavesdropping program.

Senator Specter’s bill would rewrite FISA section 109 to state “A person is guilty of an offense if he intentionally – (1) engages in electronic surveillance under color of law except as authorized by statute or under the Constitution.” Judge Taylor held, however, that the Fourth and First Amendments prevent domestic wiretapping for foreign intelligence gathering without a judicial warrant. Senator Specter’s bill was transparently intended to “overrule” a ... Continue Reading

What do you get when you put together New York subway riders, random searches, the Fourth Amendment to the U.S. Constitution, and a “War on Terror”? Why, a lawsuit of course. Just last week, the New York chapter of the ACLU filed suit in U.S. District Court in Manhattan on behalf of five New York subway riders to contest the policy in New York City, since July 21, to have police conduct random searches of riders’ bags and packages. The plaintiffs claim such searches violate their right to be free from unwarranted searches and seizures under the Fourth Amendment. A link to the story can be found here.... Continue Reading

Yesterday, August 2nd, the U.S. Court of Appeals for the Fifth Circuit issued a decision in the case of White Buffalo Ventures, Inc. v. University of Texas at Austin, holding that the University of Texas didn’t violate the constitutional rights of an online dating service when it applied UT’s general anti-solicitation policy and blocked thousands of unsolicited emails.... Continue Reading

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Davis Wright Tremaine provides counsel on all domestic and international privacy issues for media companies, retailers, health care organizations, financial institutions and other clients handling consumer data. We work with clients on end-to-end security programs, from policies and procedures to incident response. Our lawyers are well-versed in the latest resolution strategies should a breach of security or unauthorized disclosure occur, including subsequent litigation.